Phillips v. Bradshaw , 167 Ala. 199 ( 1910 )

SAYRE, J.

Appellant sued appellee for slander. The complaint was that defendant had falsely and maliciously, in the presence of divers persons at the Colonial Hotel in the city of Birmingham, on April 4, 1908, charged the plaintiff with the larceny of 15 bales of cotton. The plea was not guilty. Plaintiff had sold and conveyed a plantation in Russell county to the Birmingham Industrial Company on June 12, 1907. Three days later the parties to the conveyance, the industrial company acting through Bradshaw, its president, had entered into a contract in writing, under which plaintiff had entered upon the management of the plantation for the industrial company for the then current year. The alleged slanderous words were spoken concerning transactions of plaintiff in that management. Por his part, plaintiff showed publication of the slanderous matter by utterance of the words charged in the presence of one Mrs. Christlieb and another at the time and place laid in the complaint, and, as showing malice in fact, the utterance of words of similar import on other occasions and in the presence of other persons. Plaintiff claimed, as we gather from the record, that the industrial company was indebted to him in a considerable sum under their contract, and that he had appropriated the cotton in pursuance of his rights thereunder. The contract was in evidence. To further sustain his contention, plaintiff offered to show that there had been an agreement between himself and the defendant, as president of the industrial company, about the indebtedness, apart from the writing, and anyhow, that some of it had accrued for money furnished by him for making crops on the land cultivated by share croppers. The. words imputed to defendant in the complaint, and by plaintiff’s witness, imported the commission of a crime by plaintiff, and were actionable per se. Unless they appeared to have been used on an occasion which rendered them privileged, the presumption is that they were false and malicious, and no other evidence of malice was necessary. Townsend on Sian. ■& Lib. § 388. But the gist of the action, was a false and malicious injury to plaintiff’s character, and, in addition to the presumption in his favor, the plaintiff might show his good character and the falsity oí the charge made against him as proving malice in fact and as affecting the measure of recovery. However, the plaintiff did not offer to go into the question of his character until it had been attacked by the defendant, and was permitted without objection to testify that he had never stolen cotton from the industrial company or any one. Plaintiff also testified, without let or hindrance, that at the date of the contract the industrial company became indebted to him, thereunder, in a large sum for advances made by him to the wage hands on the plantation and for cultivating the crop up to that date. In the course of the examination the court ruled that evidence of advances made after the date of the contract would be admitted, but otherwise as to advances made theretofore. To this limitation no objection was taken. Subsequently the witness was asked how the indebtedness, to which he had already deposed, came due to him; whether some of it was not for money furnished to share croppers. The court sustained an objection to this question, and that ruling is made the subject of the first assignment of error. We do not understand that this ruling was a departure from the ruling previously made, or that counsel so understood it. The question asked seemed to assert some distinction between the right of plaintiff in dealing with cotton raised by wage hands and that raised by share croppers. But we discover no distinction which in itself would affect the truth of the charge alleged to have been made by defendant against plaintiff. In either case the rights of plaintiff were substantially the same.

Plaintiff was asked by his counsel: “Was there any agreement between you and Bradshaw, as president of the industrial company, about the indebtedness which had accrued on the farm, at the time of the sale?” An objection that this question sought to vary by parol the terms of a written contract was sustained. If plaintiff’s appropriation of the cotton was honestly made in reliance upon an agreement made between him and Bradshaw, plaintiff had the right to make proof of an agreement which authorized the appropriation for the purpose of showing his intent, and thereby the falsity of the alleged slander, and, further, Bradshaw’s knowledge of its falsity; and this, without impinging upon the rule that, as between the parties in any proceeding to enforce the contract, the writing became the sole memorial of all prior and contemporary agreements not merely collateral thereto. — Walker v. State, 117 Ala. 42, 23 South. 149. It may be conceded, therefore, that the objection urged to the question was untenable, and that there would have been no error had the court ruled otherwise. But error will not be imputed if the action may be sustained on any ground; and we think it may. Neither the question, nor the record aliunde, discloses the nature or relevancy of any agreement, proposed to be shown, to any issue in the cause, and so we are left to speculate whether, if plaintiff had been allowed to answer, anything of consequence to the plaintiff would have appeared. Herein the case differed from. Walker v. State, supra.

When Bradshaw came to testify with reference to the occasion of the publication charged in the complaint, while confessing a conversation with Mrs. Christlieb aud the use of words not complimentary to plaintiff, his version so far differed from hers that a variance between pleading and proof would have resulted from the jury’s unqualified acceptance of his testimony. — Williams v. Bryant, 4 Ala. 44; Easley v. Moss, 9 Ala. 266. In this state of the evidence, the general charge for the plaintiff was properly refused.

Prince, by agreement superintendent in charge of the plantation, his salary being paid in equal proportions by plaintiff and the industrial company, testified that Bradshaw had repeated the alleged slander to him in the presence of two or three white men and a number of negroes. Bradshaw at the time was on the plantation looking after the interest of the industrial company. Communications by an employer to his superintendent, having reference to the protection and care of the property committed to him, are to be considered as confidential, and, if made without express malice, are not actionable, though unjust and expressed in terms which would support an action under other circumstances. — Easley v. Moss, supra. They are conditionally privileged, the law withdrawing the legal inference of malice, and giving protection upon condition that actual or express malice, as contradistinguished from that malice which is implied by law where a wrongful act is intentionally done, he not shown. — Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49. It is said in New-ell on Slander & Libel, p. 509, that the privilege is lost if the extent of the publication be excessive, or the language used go beyond the demands of duty or interest. But the privilege is not defeated by the mere fact that the statement is made in the presence of others than the párties immediately interested, nor that they are intemperate.-Brow v. Hathaway, 13 Allen (Mass.) 242. The question is whether the communication is made in good faith in the discharge of some legal or moral duty, or in the fair and honest prosecution of rights or the protection of interests, on one hand, or inspired by ill will, on the other, and that is a question for the decision of the jury. If the communication to Prince was privileged under the rule laid down, it should not have been weighed against defendant as going to show actual malice in the communication to Mrs. Christlieb. In charge A the .privileged character was asserted with proper hypothesis. Not so in charge 33. The publication to Prince may have been malicious, though made with a view to the protection of the company’s interest. Both motives may have concurred. If so, there was no privilege.

Charge O should have been refused. The evidence does not show that the defendant made the statement io Mrs. Christlieb in answer to an inquiry, or that the latter had any interest of legal recognition in the subject-matter of the conversation, or that the interest of Bradshaw or the industrial company could have been served,-or that defendant supposed they could have been served, by the statement made. No privilege attaches to mere gossip. — Newell, p. 524.

We cannot accede to the proposition of charge B. The language used must be accepted as ordinarily interpreted by laymen. If to the ordinary apprehension it charged larceny, it will not be held to constitute a charge of embezzlement, and so a variance established, for the reason only that as a technical charge of larceny the language was defective, or that a charge of embezzlement would have been more appropriate. Courts will understand language, in whatever form it is used, as all mankind understand it. This is said apart from the question of variance involved.

Charge 8 correctly stated the law. We suppose it may have been refused on the theory that the language attributed to defendant was used on an occasion of privilege. But, as we have seen, no element of privilege entered into that occasion.

For the errors indicated, the judgment must be reversed, and the cause remanded for another trial.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.